For a while now, the happy word in the future of academics has been “interdisciplinary.”  It’s a perfectly nice word, It’s the sort of word that conjures up images of broad thought and an entirely new plane of academic scholarship. In light of the complaining that law school fails to prepare students for survival in the real world, it smacks of an effort to do better.

At the Legal Whiteboard, Jeff Lipshaw hops aboard the speeding train.

Bill [Henderson] and I have already posted separately (here and here) about our mutual sense that the traditional disciplinary walls of the profession are crumbling, not just in terms of regulatory aspects like multi-disciplinary practices, but in terms of the integration of legal expertise with other aspects of enterprise, policy, mediation, and the like.  (Nothing like a blog to flog your own work  – blog flog? – but I’ve written about this in The Venn Diagram of Business Lawyering Judgments:  Toward a Theory of Practical Metadisciplinarity.) 

In that continuing vein, the Wall Street Journal has a story this morning about school administrators and corporate recruiters rethinking the value of an undergraduate business major.  “The biggest complaint:  The undergraduate degrees focus too much on the nuts and bolts of finance and accounting and don’t develop enough critical thinking and problem-solving skills through long essays, in-class debates and other hallmarks of liberal education.”

In practice, I use lessons from psychology, sociology, philosophy and business constantly.  That could explain why I obtained an undergraduate education before law school.  As Jeff notes, a complaint about undergrad is that it has left its tether of liberal arts and, at least for a degree in business, become too nuts and bolts oriented. That may be, given that I haven’t spent much time in an undergrad classroom since early 1979.   While my undergrad degree was pretty nuts and bolts, we were required to fulfill the distribution requirement that forced us to leave college with an education so that we could, at minimum, go to cocktail parties and not appear foolish.

But the use of the word “interdisciplinary” in law  school scares me. Greatly.  First, if students aren’t gaining a breadth of knowledge in undergrad sufficient to prepare them to take a viable role in society after law school, then the problem seems to be that they should either address the failure at the undergrad level or not admit them to law school. 

Does law school exist to compensate for an inadequate undergraduate education? That’s where lawprofs seem to be heading, thus expanding their own utility and scholarship but solving someone else’s problem. Mind you, it comes at the expense of a legal education, as no one suggests they add another year or two to law school (thank god) so that they can both cover the legal aspect as well as the interdisciplinary aspect.

But a particular concern is that law students graduate without any idea about business.  Certainly a working knowledge of the business world is hugely valuable, whether to understand what clients do when they aren’t being billed for unrequested memos, or to use in the creation of their own successful practice. This too raises some questions.

Is there enough room in the law school curriculum to include a B-School education along with an L-School one? Maybe a course or two, but not if it comes at the expense of, say, evidence.  If business class replaces Law and Basket Weaving (another interdisciplinary favorite), then all is good.

But who is going to teach this? All the lawprofs who have created successful law practices raise your hands?  Nobody.  Well, all the business school profs who have created successful law practices raise your hands?  Nobody.  This could be a problem.

For as long as the debate has raged over what to teach in law school, there has been scant acknowledgement of two issues: first, that the world of theory and scholarship that lawprofs love more dearly than life itself isn’t the world students bought into when the signed up.  They came to be lawyers, not distractions from time better spent thinking deeply about how tenure can be assured.

Second, the integration of real world knowledge and skills, both legal and business, can peacefully coexist with theory and deep thoughts. Sure, it means that some of the really screwy scholarly stuff will have to go to make room for actual useful knowledge.  The vessel is only so big, and once filled, there’s no room for a bit of nasty nuts and bolts talk, even though that’s what law students want and need.

This raises another problem, of course.  Who will teach students about real life law as well as theory?  Who will teach them business alongside philosophy? There aren’t too many lawprofs whose experience outside the Ivory Tower enables them to do more than either make stuff up or read it from a book. That’s not real life, folks.

And for the few who do have actual experience in the law, in business, in life, their scholarly brothers and sisters frown upon such banal experience.  There is no support in academia for guys who use two syllable words when there are five syllable words available.

The locomotive toward “interdisciplinary” education for law students is one driven by academics, and only takes academics aboard. The very notion of isolationist purity of academic disciplines is a creation of scholarly vanity rather than utility. Academics see their specialization as a way to become better recognized as an expert, by focusing on one thing and nothing else.  In the real world, no one gets to be so myopic. We may have favorite subjects, but we learn what we need to learn and use whatever we have in our arsenal.

Embrace breadth of knowledge. Learn to love economics and organizational behavior. Every bit of information we possess makes us better at what we do, or at least provides us with better chatter at cocktail parties (and there’s nothing wrong with that).  But the formality with which the scholars approach it, even the creepy use of yet another multi-syllable name for what they should have been teaching all along, and you’ve got to love Lipshaw’s term, “metadisciplinarity,” can’t be good.  It smacks of substituting one myopic vision for a newer version. Can’t lawprofs just teach students what they need and want to know without creating yet the next educational morass?

Having posted this week about the  Supreme Court’s decision in Florence v. Board of Chosen Freeholders, where the Court deferred to the sound judgment of police and prison guards as to whether to strip and cavity search people regardless of how trivial or mistaken the reason they’ve decided to take a person into custody. it seemed worthwhile to remind people of exactly what we’re talking about.

Take what happened to Hope Steffey.

Though she  ultimately settled with the county, the video reflects the trivial interest a human being has when compared with the vastly more important interest of not requiring the police and prison guards to be forced to think before they engage in needless conduct that fundamentally degrades a human being. Or worse.

Justice Kennedy thinks the price is worth it. You decide for yourself.

For those inclined to think, “well, if she’s in custody, she must have done something to deserve it.” she didn’t.  And even if she did, only a truly sick person would find this scenario acceptable.  The video is disgusting. Watch it. This has the seal of approval of the United States Supreme Court, because this never happens in America. Except it does, just not where anyone on the Supreme Court will see it.

The proper sentence has long been one of the great mysteries of the system. There is the question of  why someone will be sentenced to, say, 17 years rather than a nice round 15 (or 20, for that matter).  Then there is the question of why a sentence of imprisonment is imposed at all, when the option of probation is available.

Kings County Supreme Court Justice Gus Reichbach had that option when it came time to sentence Jason Arbeeny, who was convicted of “flaking” a couple of guys.  Via the best crime reporter in town, Oren Yaniv at the Daily News :

In a bench trial, Reichbach found Arbeeny guilty of “flaking” — framing two people by planting crack in their car during a 2007 bust.

The ex-cop technically faced a maximum of four years in prison, though sources said he was never likely to get that much.

He was one of eight officers indicted in a Brooklyn South Narcotics scandal. His trial revealed the seamy side of narcotics policing, including cops getting sexual favors from junkies in exchange for drugs and making false arrests to meet quotas and rake in overtime.

A fall from grace? That’s how it looks to cops, who suddenly find empathy where before there was nothing.

Reichbach called Arbeeny’s conduct “not only reprehensible abuse of trust and authority but the corruption of the entire criminal justice system.”

But he was swayed by pleas from the defendant, his wife and lawyer, who talked about how he had lost his job, his pension and his health.

Arbeeny even mentioned that his young son is in therapy after threatening suicide.

Defense lawyer Michael Elbaz blamed the “enormous pressure” to meet arrest quotas.

It’s really tough to be a cop, all the pressure of being the guy with the gun and shield ordering other people to bend to their will, to do as their told or feel the cold metal, whether it’s the gun across their face or the cuffs on their wrist.  And what about the poor family, who suffers the humiliation? Of course, defendants (including the innocent ones framed) have families too, but when that’s raised in mitigation, there’s always the argument that they should have thought of their children before they committed the crime. We can’t expect cops to think of their children before they flake people, as their minds are too chock full of pressure-filled thoughts.

He cried — and the judge cut him loose.

A disgraced NYPD detective convicted of planting drugs on an innocent couple was looking at jail time when he walked into court on Thursday.

He walked out with probation after blubbering that he was ashamed of himself and pleading for mercy.

“I can’t look at myself in the mirror anymore,” Jason Arbeeny told Brooklyn Supreme Court Justice Gustin Reichbach.

“Sir, I am begging you, please don’t send me to jail.”

Aw, the detective cried.  He blubbered. He was so pathetic that Justice Reichbach took pity on him and showed him mercy.  After all, he lost his job. He lost his pension. Hasn’t he suffered enough? 

In fairness to Justice Reichbach, he’s proven himself fair to all defendants before him.  His sense of mercy and proportionality distinguishes him, and one can hardly fault him for showing empathy to Abeerney as he’s done the same for others who didn’t wear a badge when they committed their crime.

But cry?  Blubber? What about the cries of the wives, the mothers of children whose fathers were flaked?  What about the children’s cries when their parent went far upstate to little towns whose only industry is a prison because some cop with a quota lied about what they did?  How many cops can’t sleep at night because they left another child without a parent?

But then, as long as their pensions are vested and intact, life is good for a police officer. Nothing to cry about when the pension is safe.  So somebody got framed in the process of racking up some overtime? Well, he probably did something anyway, and even if he didn’t, somebody has to take one for the team. As long as that somebody isn’t a cop.

Consider how the relative impact on society differs from the defendant accused of dealing drugs and the defendant who puts innocent people in prison.  The former goes to prison for decades, while the latter gets probation.  Both cry, yet somehow the cop’s blubbering is so much more sympathetic, so much more sincere.

Arbeeny, who was on the force for 14 years, tearfully apologized to his victims.

“My oath went down the window, my pride went out the window,” he said.

Reichbach admitted the weepy mea culpa got to him.

Justice Reichbach must be a better person than me, because I’m not feeling any reticence over shipping Arbeeny off to Ossining.  You know, it’s tough for a cop in general population.  Then again, it’s tough for anybody. And it’s really tough for those hungry kids who have lost their parent. It’s always tough. For everybody.

Maybe it’s because civilian defendants can’t strike the right note for lack of an oath they violated?  Could that be why Arbeeny’s tears made a difference?

Sorry, but I really can’t find it in my heart to feel particularly sorry about this “weepy mea culpa.” I’m still stuck on all the other defendants who were framed so some cop could make his quota, get some overtime and keep his pension.  In fact, it strikes me as a better reason to put him in prison rather than cut him a break.

This defendant was sentenced last February, but it just came on my radar today.  I wonder how many defendants were framed by cops who got the message from this sentence, that if they get caught, they will never see the inside of a prison cell, and then went on with flaking the innocent and guilty alike without any breaking a sweat.  If they get caught, all they have to do is cry.

While most complaints focus on disparities in sentencing as the primary evil to be cured in the difference between judges in the system, there is a huge, gaping hole that has received little scholarly attention but affects the lives of just as many people.  To spell it out bluntly, most judges confuse their role as neutral magistrate with the job of prosecutor.

When it comes to people being appointed to the federal bench, there are far more who move from the United States Attorney’s office to the bench than from trench. They still get to work in the same building. They suddenly find defense lawyers laughing at their lame jokes. Their lack of charm as prosecutors are suddenly replace by their smiles and amusing demeanor as judges. But their exercise of discretion hasn’t changed at all. 

Their efforts are spent coming up with explanations for why the defendant loses. Over and over, regardless of law or evidence, because they are empowered to exercise discretion. They exercise discretion in favor of the government every time.  No agent has ever been found incredible. No defendant’s testimony has ever prevailed. The reason sentencing is so easily discussed is that so many get sentenced. The defendant is always guilty to these judges, so the only question is how guilty.

Sure, there are the occasional stories of a federal judge confronting an outrageous abuse, but these remain the outliers. Don’t think that the rare win, the Ted Stevens fiasco, has done anything to stop the tide from coming it.  The reason we talk about it is because it’s so rare.  So very, very rare.

John Gleeson was a big time prosecutor, which landed him a robe and bench.  No one, but no one, can question his dedication to putting bad guys away in his prosecutor days. He was a player. But when he put on his robe, he hung up his prosecutor suit. I’ve written  about Judge Gleeson a  few times already because he’s demonstrated over and over that some former prosecutors can rise above partisanship to both fulfill their oaths and overcome the expedience of defaulting to the government. 

Judge Gleeson has done so again.  Via Doug Berman, his decision in United States v. Dossie which is worth quoting at length:

This case illustrates how mandatory minimum sentences in drug cases distort the sentencing process and mandate unjust sentences. In the substantial percentage of cases in which they apply, they produce a sentencing regime that is worse than the one the Sentencing Reform Act of 1984 was enacted to replace. They make opaque what that law was intended to make transparent. They strip criminal defendants of the due process rights we consider fundamental to our justice system. Most importantly, too many nonviolent, low-level, substance-abusing defendants like Jamel Dossie “lose their claim to a future” — to borrow a phrase from Attorney General Eric H. Holder, Jr. — because lengthy mandatory prison terms sweep reasonable, innovative, and promising alternatives to incarceration off the table at sentencing.

There is no need for new legislation to remedy this state of affairs. The Attorney General himself has it within his power to remedy it.  He can do so by

• citing to the ten-year mandatory minimum in an indictment only when the government intends to prove that the defendant occupied a leadership role that warrants a four-level upward adjustment under U.S.S.G. § 3B1.1(a);  


• citing to the five-year mandatory minimum only when the government intends to prove a managerial role worthy of a three- or two-level upward adjustment under § 3B1.1(b) or (c); and  


• withdrawing the mandatory minimum provision from the case (or reducing it, as the case may be) if the corresponding aggravated role has not been proven by the government or admitted by the defendant.

I respectfully urge the Attorney General to implement such a policy.  It is a modest request. It asks only that the Department of Justice (“DOJ”) refrain from dictating severe mandatory minimum penalties when it cannot prove by a preponderance of the evidence that the defendant was the kind of drug dealer for whom those penalties were enacted.  By ensuring that the harsh, wooden mandatory minimum provisions are employed only in the circumstances to which Congress clearly intended to limit them, the government could reform an aspect of the criminal justice system that is in need of repair.  The reform would promote transparency and accountability in sentencing and return to defendants the due process sentencing rights that are snuffed out in cases like this one.  Finally, it would be consistent with the Attorney General’s public statements about how our criminal justice system ought to treat defendants like Dossie.

Imagine how different it is for a defendant who has the good fortune to be wheeled out to a judge like John Gleeson as opposed to some other judge who will shut down any argument, find against any fact, ignore anything remotely resembling reason and exercise discretion in such a way as to facilitate the flow of human beings from the street to the prison as quickly and cleanly as possible.

And yet there is no shortage of concern about how many months are imposed at sentence for similar offenses?  Maybe, just maybe, if more judges were more concerned about being judges than about moving cattle to the slaughterhouse, we would be less concerned about the sentence imposed. Maybe, just maybe, every defendant wouldn’t have a sentenced imposed at all. 

Yeah, I can hear you laughing.  But then we have a Judge like John Gleeson. If only we had more.

Given my limited grasp of how exactly the little tubes of the internet work, it seems prudent to defer to others who know more when it comes to what can and can’t be done.  It’s a lesson David Post at  Volokh Conspiracy should heed as well, as his well-deserved smack at Richard Clarke, former United States Cyber-Security Czar, would have stayed on point. 

David slammed Clarke’s  New York Times op-ed, wherein Clarke railed at the failure of our government to address

“continuing, rampant cybertheft,” which amounts to  “the greatest transfer of wealth in history.”

Because it is fearful that government monitoring would be seen as a cover for illegal snooping and a violation of citizens’ privacy, the Obama administration has not even attempted to develop a proposal for spotting and stopping vast industrial espionage. . . . But by failing to act, Washington is effectively fulfilling China’s research requirements while helping to put Americans out of work. Mr. Obama must confront the cyberthreat, and he does not even need any new authority from Congress to do so.  Under Customs authority, the Department of Homeland Security could inspect what enters and exits the United States in cyberspace.
(Emphasis added)

And this is where David flipped out.  The problem is that his attack included an understanding of how the interwebz work that techgeeks ripped to shreds.  David wrote:

It doesn’t work like that — does Clarke really not get it?  There’s a single global network that has a (virtually) infinite number of entry points.  There are no ships coming into the harbor that you can board and inspect.  There’s no place where you can station your border guards to check stuff coming “in to the United States” or moving “out of the United States.”  Oh — and we actually like it that way; that’s one of the very important things that makes the Net such an astonishing place.  You want to open up and inspect every packet that lands on the desktop of anyone located within US borders?  Is that what you’ve got in mind?  If that’s your proposal (and I can’t for the life of me imagine what else you might have in mind to accomplish this bizarre and absurd task) — No, thank you.

As it turns out, maybe it does work that way, according to VC commenter Sean Flaim,  at least somewhat.

It’s not true there is an “infinite” number of entry points.  The backbone has a limited number of discrete entry and exit points from the U.S. going to foreign countries, along major underwater telecommunications cable lines.  You can find a good map of Level 3’s cable’s here:   http://maps.level3.com/default…  Other major backbone providers use the same cable launch points.  Is that all of the ways in and out of the U.S.?  No.  There is also satellite, and the capability of routing through cross-border lines to Mexico or Canada and then overseas.  But these choke points handle about 98% of all traffic or greater.

Is this true? Beats me, and if you happen to think yourself particularly knowledgeable on the subject, keep it to yourself. It’s irrelevant. Even if the task of border searching every packet that flies in and out of this country through the little tubes of the internet can be done without breaking a sweat, so what? If it can’t be done today, it will be doable tomorrow. Technology is amazing stuff, but it fails to address the analogy to border searches provides the government with the authority to search data as it crosses from here to there.

Clarke’s argument falls very much in line with the arguments used by courts in every 4th Amendment case involving tech, that we can discern the law to be applied to the digital world by cute analogies to the physical world.  Recall the many discussions of whether decrypting a computer is more like a file cabinet with a key or a combination lock? Or perhaps the third party doctrine for searching emails, given that every email resides on some third-party’s server somewhere, whether anyone realizes it or not?

The impetus for Clarke’s “sky is falling” scenario is that our country, in the throes of continued unemployment and economic stagnation, is being ripped off by Chinese hackers, who are stealing our very expensive brilliance and using it to reap the rewards that should rightfully be ours.  He offers almost no support for the proposition, but it’s not hard to imagine that it can happen if it doesn’t already. 

Of course, it starts this way, with something benign like protecting American IP and technology, something we can all generally agree is a good thing for us. We want a more robust economy. We want to lower unemployment. We want the good old days when we were living large.  And those nasty hackers are stealing it from us. Damn them.

Yet once the government gets its sticky fingers around every packet flowing in and out, it’s going to include not only the stuff done by back Chinese hackers, but by the rest of us as well.  If they can search every packet of information, then my packets and yours are included.  And suddenly, the world wide web becomes a fabulous source of information for the government. It gives new meaning to search engine. And as even internal emails run through servers located elsewhere, it could cover a lot more than just hack attacks from Fuchan Province.

Sure, there’s always encryption, which could serve as an after the fact means of stymiing the government’s efforts, but that shifts the burden back to us while giving the government free rein. Plus, if you think the government is going to take encryption lying down, you aren’t familiar with American history.

Where Clarke’s enjoyment of facile analogy (and similarly, the courts and the academics who similarly embrace analogy to further a simplistic and usually facile application of old doctrine to new technology) goes astray is that the concept of border searches was based on the rationale of stopping the flow of untaxed or harmful goods into the country. It was never meant as means of generalized search, a free ride for the government to peak under our clothes, into our minds and over our rights.

A common theme is that the law, over time, remembers the rubric and forgets the rationale. This has never been as true as when the government seeks to apply physical world doctrine to digital world applications. It’s bad now, and as we can see from Clarke’s attempt to abuse it, it’s only going to get worse.

Analogies are fun to play with, and often an enjoyable game for parties and classrooms. They are not, however, a basis for the forfeiture of rights or a substitute for adequate grasp and thought.  There are certain bottom line questions, such as whether we believe that the government should have free access to every email we send. Forget the analogies to arcane physical world doctrine. Forget whether they have the capacity. Consider whether we really want the government to be able to do it. That’s the question that needs to be answered, regardless of what tube our lives flow through. 

The  Unwashed Advocate and parent of a pathetic sharp cheddar, Eric Mayer, reveals his shame and humiliation at watching his “spawn” in the school cafeteria in a love story between cheese and rat.

I’d like to say that the story warmed my heart and made me a better person, but I can’t. In fact, I barely noticed the gist of the story. Why? I was preoccupied with the fact that my child–my offspring–my pride and joy–watched his dreams of future success and renown shatter into a million pieces upon the stage in the elementary cafeteria.

To my horror, I saw that he had been relegated to the role of “Sharp Cheddar.”

Just typing the words causes tears to well in my eyes. The heartbreak I feel is something no parent should ever suffer.

The pain of parenthood cannot be overstated.  The responsibility is overwhelming, while the world around us dictates the failure of our off-spring’s self-esteem. Nothing is more important in parenting than guaranteeing that our children enjoy unwarranted self-esteem. Nothing is more important in parenting than assuring their every desire be fulfilled.  Nothing is more important in parenting than having someone else to blame.

Too many “nothing is more important”?  Then you, sir, are no parent.

As I slowly exit the parking lot, I see them all gathered happily near Tucker’s parent’s minivan. When they see me driving away, their smiles fade, replaced by knowing glances to one-another.

My mood turns to anger on the drive.

I won’t’ accept blame for this one. It’s the teacher. The music teacher! She is to blame. She has her favorites. Her little pet Brandon, always getting the perks. I must blame her.

In Brooklyn, New York, the only thing greater than pride in their use of the King’s English is their skill at raising children.

This weekend’s New York Post features an almost-too-perfect story about how Brooklyn parents would prefer not to do their own parenting:

They’re all screaming for no ice cream.

Overprotective Park Slope parents have declared war on a treasured rite of spring: an ice cream in the park.

[One] angry mother, identified on the site as Dorothy Scanlan, chimed in.

“I should not have to fight with my children every warm day on the playground just so someone can make a living!” the poster wailed. “I too was at the 9th Street Playground on Monday, and one of the vendors just handed my 4-year-old an ice cream cone. I was furious.”

The Post piece leave the “there oughta be a law!” message unspoken, other than a passing reference to a “ban,” whose nature is otherwise unspecified.

Ironically, just the other day I felt a yearning for a strawberry shortcake Good Humor bar as I was driving up the New Jersey Thruway from College Park, Maryland (where the cheesy scent of sweat permeated the Cherry Blossom Open) toward Brooklyn. There was no ice cream man to be found, crushing my spirit.

Not every parent’s hopes and dreams rise and fall with the smile on their child’s face, but I would hope it’s true for most of us.  We want our spawn to be the star of the play, to walk offstage to thunderous applause and admiring stares from other jealous parents.  But it can’t happen.  It’s not just that Brandon is the music teacher’s pet, but that if it wasn’t Brandon, it would be Justin. It would be someone, and that someone isn’t always going to be ours.

That means that the lot falls to the parent to suffer the indignity of having to explain why somebody had to be sharp cheddar.  It’s brutal.  It’s far easier to pin blame on the music teacher and her pet Brandon than suggest that maybe our darling baby isn’t the absolute tippy-top best at everything he touches. To do otherwise would be to damage his self-esteem, which could result in his gunning down a post office full of people if he failed to win his party’s nomination for President of the United States.

Other times, it means saying the one word that no parent ever wants to utter. No.  If you don’t want junior to have an ice cream (which, as  futurist Woody Allen suggests, will eventually be proven to be the most significant foodstuff to enhance longevity available), fine. Deprive your child of one of the great joys of summer, if that’s what you want to do. 

But it violates the code of parenting to be the meanie who says “no,” which will make your child hate you, require therapy for the rest of his natural life and end up as sharp cheddar.  And you will cry.

Yes, it’s very difficult to be a parent these days. Fortunately, there are plenty of people to blame. There are always plenty of people to blame.

When this is the first comment to a post, I feel compelled to read.

Excellent post, Michael.

Posted by: Orin Kerr | Apr 5, 2012 12:19:01 AM

At PrawfsBlawg, where I think Dan Markel has  banned me for life for violating his comment policy of only praising scholars, a post by Michael J.Z. Mannheimer, a lawprof at Northern Kentucky University (“Ubi homines sunt homines, et oves timidus”) diminishing the implications of Florence v. Board of Chosen Freeholders, the Supreme Court decision  allowing unfettered latitude to prison officials to inspect nun’s body cavities.
 
What makes this special, aside from my pal Orin’s glowing comment, is that Mannheimer’s got some real world experience in the law,  He worked as a staff attorney in appeals for the Legal Aid Society, then wasted a few years clerking for an SDNY judge and warming a seat at Paul Weiss, where he obviously gained his sartorial sensibilities. He went back to work:

For five years before joining the Chase faculty in 2004, Professor Mannheimer served as Appellate Counsel and then Senior Appellate Counsel at the Center for Appellate Litigation in New York City, where he represented indigent criminal defendants on appeal from their convictions and in related collateral proceedings. He has briefed and/or argued over forty appeals in the Appellate Division of the New York Supreme Court, the New York Court of Appeals, and the U.S. Court of Appeals for the Second Circuit. He has represented clients at every level of the state and federal judiciaries, from handling sentencing proceedings, motions, and hearings in the New York trial courts to filing cert. petitions in the U.S. Supreme Court.

This sort of experience should have given him a better appreciation of the price citizens pay to live in our vaunted free society, provided they don’t mind being commanded to squat and cough on occasion to facilitate the ease of public sector employees performing their job at the risk of tunnel vision.

Mannheimer calls the reaction to Florence “somewhat overblown.”

Florence is another in a line of cases in which the Supreme Court has refused to calibrate constitutional criminal procedure rules to the severity of the crime at issue. In Atwater v. City of Lago Vista, for example, the Court held that police could arrest for any offense for which they had probable cause, even one that was a “fine-only” offense, i.e., did not have any possible jail time attached. In part, the Court refused to adopt Atwater’s proposed distinction between serious and minor offenses because of the hardship it would place on the police in some cases in determining which had occurred: whether drug quantity, or the value of a stolen item, was just over or just under the threshold amount for a “serious” offense, or whether it was the suspect’s first or fifth offense. Likewise, in Berkemer v. McCarty, the Court rejected the State’s contention that statements made in the absence of Miranda warnings were admissible where the police arrest for a traffic violation.

Forgiving the wordiness of a former appellate lawyer, his embrace of precedent is understandable. The Supremes have decided a line of cases that absolves the police of any responsibility for knowing what they are doing when it’s hard.  If Mannheimer’s vision was a bit broader, the list of cases would have been far longer, given the Court’s indulgence of police ignorance and its concomitant authorization for broader authority to intrude into the rights of citizens in direct inverse proportion to their knowledge.

What this means is that the less the cops know, the more they’re allowed to do.  The price for stupidity is everyone else’s civil rights. If the cops don’t know what they’re looking for, they can search anywhere. If the cops don’t know whether you’re holding a kilo or nothing, they can demand to see your anus. That sort of thing.  If the cops put inaccurate information in their computer, they can seize you and throw you in the clink (and do the anus thing) even though you are 110% innocent of any wrongdoing.  If you’re a cop, it’s good to be stupid. The stupider you are, the more you’re allowed to do.

Radley Balko writes about a bullet in a black kid’s kidney because a cop input the wrong license plate number into his mobile computer. I can’t help but wonder if it was made by Apple and had autocorrect. Huge mistake, but §1983 case dismissed because, you guessed it, the cop can’t be expected to get it right. The reasonable cop is the screwup, the moron, the guy who shoots first and afterward says “oops.”  The only thing missing was a  puppy to shoot as well.

What this comes down to is the courts’ protection of a police officer’s right to be clueless, rewarding ignorance by granting greater latitude to act than they would have if they knew what they were doing.  It’s about a choice between demanding that cops know what they’re doing before acting versus the right of Americans not to be subject to the degradation that naturally flows from stupidity. 

The Court holds that it is unreasonable to expect our police to refrain from taking the easy route, and that the rest of us have to squat,  cough and suck it up.  It’s the price we pay for freedom. Well, maybe not freedom, but for cops and now screws to do their job without too much effort.

It’s been my experience that people tend to rise or fall to meet expectations.  If the screws were not allowed to act until they figured out what they were doing before sticking their nose in an anus, there’s a chance that some contraband would find its way into the general population.  But nuns and men who paid their traffic tickets and the like would not be subject to needless body cavity searches. If the screws didn’t like losing their monopoly on prison contraband, they would tighten up their act and make sure they did things right.  Instead, the Court rewarded the most simplistic approach by deferring to the sound judgment of screws.

My expectations of lawprofs tend to run a bit low, in light of their lack of experience with how their theories tend to play out in the real world, and their adoration of public employees, especially those nearing full vesting of pensions.  But I would have expected more of Mannheimer, given that he read transcripts of life in the trenches.  That’s what makes his post particularly disappointing to me.

Yet, my pal Orin commented that it was an “excellent post.”  The problem with low expectations is that they’re usually met.

In a fascinating op-ed in the New York Times, former executive director turned columnist, Bill Keller writes some sobering truths about our embrace of hate crime legislation in light of the deaths of Tyler Clementi and Trayvon Martin.  Much to the surprise and consternation of many Times readers, Keller doesn’t toe the line.

IN 2009 President Obama signed a federal bias crimes law named for the victims of two gruesome 1998 atrocities: the young gay man who was tortured, lashed to a fence and left to die; and the black man chained to the back of a pickup by white supremacists and dragged until he was dismembered. The Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act joined a 40-year accumulation of statutes declaring that crimes committed with a mind full of racial spite or anti-Semitism or homophobic hatred should be punished more severely than identical crimes committed for greed or vengeance.

Today the notion is embedded in our culture. Almost every state has some variety of hate crime law.

The murders of Shepard and Byrd were horrific. As an impetus for trying to wipe out a state of mind that gives rise to the motivations to commit such shockingly heinous acts, it’s hard to imagine anything stronger. But as is invariably (and thankfully) the case, conduct this bad is rare.  Prejudice is not.  And so we have a cultural notion, with some very serious law backing it up, in search of culprit.

From this vantage point, Keller recognizes that a well-intended goal doesn’t necessarily mean that it’s a good idea.

But the fact that it is constitutional and commonplace does not quiet the nagging sense that hate crime legislation resembles something from an Orwell dystopia. Horrific crimes deserve stern justice, but don’t we want to be careful about criminalizing a defect of character? Because our founders believed that democracy requires great latitude for dissent, America, virtually alone in the developed world, protects the right to speak or publish the most odious points of view. And yet the government is authorized to punish you for thinking those vile things, if you think them in the course of committing a crime.

Many see these laws as resembling something from an Orwell dystopia, but Keller’s reasoning similarly leaves a nagging sense that it’s about to fly off the rails.  While the final sentence speak to punishment for “thinking those vile things,” he sneaks in a characterization about “criminalizing a defect of character.”  

Keller later explains, relying on a  seminal article by Heidi Hurd,

Back in 2001, Heidi M. Hurd, a professor who comingles law and philosophy, wrote an article entitled “Why Liberals Should Hate ‘Hate Crime Legislation.’ ” The thesis sounded contrarian; hate crime laws evolved out of a great liberal cause — civil rights — and have been propelled by activists and politicians most of us would call liberal…Hate crime laws, she wrote, crossed that line: “The law now regulates not only what we do, but who we are.”

Hurd takes a huge, and unsupported, leap when she characterizes prejudice as “who we are.”

The distinction Hurd makes — convincingly, I think — is that when you penalize intent you are punishing matters of choice. One can choose not to pull the trigger, not to throw the rock, not to steal the purse.

“You can’t choose not to be prejudiced or biased — at least not willy-nilly, on the spot,” she told me, when I called her the other day at the University of Illinois.

And this is where Keller follows Hurd off the cliff, crashing into the intellectual gorge below.  We can indeed choose not to be prejudiced or biased.  We are senscient beings, to a greater or lesser extent, and have the capacity for thought and reflection.  We can learn. We can come to realizations that prejudices ground into our heads from the moment of birth are wrong, nonsense we can overcome and surpass. 

Skin color may be immutable. Prejudice against skin color is not.

Keller’s point about the criminalizing thought, even bad and evil thought, without regard to how that manifests in our conduct is absolutely right. We remain a bundle of prejudices, essentially all of us with suspicions about people unlike us, that create our default state of mind when considering those “others.”  Admit it or not, it frames our thoughts, which in turn guides our conduct. And yet we maintain throughout the capacity to decide whether to shake hands with the guy whose skin color is different or shoot him, to decide he is a potential friend or threat.

The notion that we are not responsible for the conduct that follows our prejudices is absurd. We make choices every second of every day of our lives. We can choose to live with a mind so clouded by hatred toward others as to believe what was done to James Byrd is acceptable. We can also choose not to. The ability to think is one of the distinguishing features of humanity. That some fail to use it doesn’t mean they can’t.

Had Keller stuck to the premise that criminalizing thought rather than deed was at the core of his nagging sense that hate crime laws are wrong, his foundation would be firmer.  To absolve people of their prejudice by calling a character defect, a if there was nothing they could do about  it, isn’t necessary.  People walk around thinking bad thoughts all the time, but choose not to act upon them.  People walk around thinking bad thoughts, and then realize that they’re wrong and change their thinking. 

And then there are the people who committed heinous, disgusting crimes against Shepard and Byrd. Forget punishing them for their thoughts; punish them for their deeds.

Imagine you’ve completed a course of rigorous academic study in communications and find, as your tassel is moved to the right, that there is no work awaiting you on the other side. Or you have gainful employment at a socially productive enterprise suddenly cut short for no reason of your own doing. You have debts, obligations and nowhere to go in the morning. What to do?

The first obvious choice is to turn to a life of crime. Not the nasty, violent stuff, but the Jean Valjean sort.  The other option is to become a legal marketer, where thin qualifications are met by a day or two at a conference and a few hours on twitter. With a list of ten simple things, usually available online for cut-and-paste usage, you can become an expert and demand your  seat at the table at any major law firm.

That’s it?  Oh no. It’s hardly that simple, as Laura at the  Legal Shakeup explains. There are also rules of etiquette with which you must comply.

I must say…I was disappointed that people I consider colleagues took to Twitter to voice their negative opinions. Fine, you don’t like a presenter. Maybe a session was a joke, and you think you can do better. Or, maybe you’re listening from afar, and feel like you need to poke fun (I mean, who doesn’t have unlimited time to do this? [sarcasm, people]). It’s one thing to give criticisms, but entirely another to rip someone to shreds. And to do it on a platform where meanings are easily misconstrued. Online communities make it easy to “hide” behind a profile picture or as “anonymous,” but it’s cowardly to do so to hurt another human being.

I hope these people realized that senior members of our organization were “listening.” And so were the presenters who worked to put their presentation together – that doesn’t change, good presentation or bad. And these users who decided to publicly attack – their reputation is on the line because of the things they decided to publish. No one thinks you’re any funnier for making a mean-spirited quip about someone else.

Laura is rather harsh in her denigration of behavior with which she disagrees, but haters gonna hate, and Laura hates anyone who isn’t happy.  Happy, you see, is the key to legal marketing success, not merely for the individual who must be loved by all, but for an industry that is so flimsy that it can’t withstand the slightest scrutiny.

But doesn’t she say that criticism is fine, as long as you don’t “rip someone to shreds?” 

As marketing professionals, especially legal marketers, we have to be very careful about how we’re perceived. It’s hard enough to work for lawyers, who have ethics they must abide by; now pile on some negativity and it’s likely you’ll be talked to about it. Why make it harder on yourself? Your colleagues, your lawyers, your law firm aren’t going to find the humor and may be quick to judge. Social networks still haven’t “earned” their rightful place in law firms, so it’s pertinent that you put your best foot forward, and not do anything that may jeopardize the hard work you’ve put in. Not only the hard work in your realm, but the work all of us in legal marketing have collectively put in.

Laura doesn’t really mean it. Criticism isn’t only not fine, but it’s negativity. Negativity is evil. People will talk about you.  And lawyers (who have this stuff called “ethics,” which apparently is the devil to legal marketing’s angel) will reject that marketers have “earned” (her quotes) their rightful place in law firms.  To her credit, Laura appreciates that the legal marketing industry (or its practitioning “professionals,” used in the sense of an occupation in search of respectability) isn’t well perceived.  But it’s not because they don’t work hard, but irrelevant stuff like those darn ethics and those mean-spirited negativity people.

While one might think this was a reaction to some untoward stimuli, Laura was  ready and waiting for the attacks in advance of the Legal Marketing Association’s annual conference in Grapevine, Texas.

NOTE:

There are a few “haters” of legal marketing who will be trying to interject their thoughts in our stream. Fine, let them. Engaging them isn’t going to do anything but egg them on. They’re not worth it. So block them if you feel like it, don’t reply, and let their thoughts fall on deaf ears. Seriously. It’s not worth it. They have nothing better to do than pick fights.

Maybe those awful “haters” have one thing better to do than pick fights.  While Laura promotes a cult of positivity, it’s the mortal enemy of a culture of integrity.  As the bulk of lawyers struggle to understand the implications of the internet, of social media, of whether their failure to join the race to the bottom will negatively impact their practice, Laura would have them only hear happy thoughts about legal marketing.  After all, how cool is it to make a grand announcement that you are Number 1!!! in a poll created by the kid you pay to teach you how to twit. (Shh! Don’t mention the “pay” part.)

Most telling is that if the cottage industry of legal marketing had any juice, it would be capable of withstanding scrutiny, from within and without, and nice people like Laura wouldn’t feel compelled to admonish the haters to shut up and stop trashing her beloved source of income.  But she does. And it doesn’t.

Lawyers should understand and become part of the technological future, both of society as well as the profession.  But not because they’ve been fed a bunch of nonsense by happy people whose dreams are crushed by the honesty of the handful of people who actually know what they’re talking about.  And the worst part is, some of this very small, very select, group are legal marketers themselves, the ones who actually have a clue what they’re doing and understand the significance of legal ethics in any course  of action taken by lawyers, aren’t happy at all.

Nobody, but nobody, expected a different outcome after oral argument in Florence v. Board of Chosen Freeholders.  After Tom Goldstein’s painful oral argument, it was a fait accompli.  And yet, the decision of the Supreme Court majority sends chills down the spine.

From the New York Times :

The Supreme Court on Monday ruled by a 5-to-4 vote that officials may strip-search people arrested for any offense, however minor, before admitting them to jails even if the officials have no reason to suspect the presence of contraband.

Justice Anthony M. Kennedy, joined by the court’s conservative wing, wrote that courts are in no position to second-guess the judgments of correctional officials who must consider not only the possibility of smuggled weapons and drugs, but also public health and information about gang affiliations.

It’s not that the rationale behind permitting routine strip searches of anyone being placed in general population is unsound. It’s true that anyone could, theoretically, secrete contraband inside a body cavity. It’s true that smuggling contraband into jails and prisons is a very real problem, and a heck of a side business for guards who like nice cars. 

But that the Supreme Court based its ruling on deference to the screws is shocking.  Who are they to question the judgment of prison officials? They are the defenders and protectors of the Bill of Rights, the special Nine who tell the prison officials that they don’t get to do anything they please. They are the ones charged with setting limits, with watching the watchers, with limiting the discretion of government folks whose interest in making their job easier doesn’t trump the right of human being not to be subject to every degradation they come up with. They are the Supreme Court. They have failed us.

Justice Stephen G. Breyer, writing for the four dissenters, said the strip-searches the majority allowed were “a serious affront to human dignity and to individual privacy” and should be used only when there was good reason to do so.

Justice Breyer said that the Fourth Amendment should be understood to bar strip-searches of people arrested for minor offenses not involving drugs or violence, unless officials had a reasonable suspicion that they were carrying contraband.

Like who, you ask? 

According to opinions in the lower courts, people may be strip-searched after arrests for violating a leash law, driving without a license and failing to pay child support. Citing examples from briefs submitted to the Supreme Court, Justice Breyer wrote that people have been subjected to “the humiliation of a visual strip-search” after being arrested for driving with a noisy muffler, failing to use a turn signal and riding a bicycle without an audible bell.

A nun was strip-searched, he wrote, after an arrest for trespassing during an antiwar demonstration.

And what was Justice Kennedy’s response?

Justice Kennedy responded that “people detained for minor offenses can turn out to be the most devious and dangerous criminals.” He noted that Timothy McVeigh, later put to death for his role in the 1995 Oklahoma City bombing, was first arrested for driving without a license plate. “One of the terrorists involved in the Sept. 11 attacks was stopped and ticketed for speeding just two days before hijacking Flight 93,” Justice Kennedy added.

If this strikes you as absurd, as in what good it would have done had this been the case when Timothy McVeigh was ticketed for driving without a license plate, then join the club.  If the point is that bad dudes are sometimes stopped for small things prior to committing heinous crimes, so what? There’s nothing about it that suggests a strip search, had they been arrested and placed into general population, would have unearthed a bomb.  Perhaps it’s just the idea that we would all feel better knowing that McVeigh had to squat and cough before he blew up a courthouse?

But more importantly, this means that tens of thousands of Americans who, through the greater glory of our legal system find themselves placed in jail over trivial (or mistaken, or even non-existent) matters will be subject to one of the most humiliating and dehumanizing experiences a person can endure because a justice can dream up two (count ’em, two) examples of really bad people who got traffic tickets. 

This is not a case about hardened criminals who have been arrested for serious crimes being able to skirt inspection as they bring weapons or drugs into prisons.  Nobody argued that should be the case, though there remains a decent argument that even serious crimes in terms of penalty, such as stock fraud, really don’t offer much of a reason to conduct a cavity search.  But that wasn’t on the table.

This is about the people who pose no meaningful threat to anyone, who in a society with better control over their police would never be in the position of being put in jail, being left to the discretion of their jailors.  It’s about the unpaid speeding ticket (even if it had in fact been paid and some grocery clerk neglected to update the computer), the protesting nun, the guy nabbed for contempt of cop, being put through the wringer because they can.

And now, they can. Because Justice Kennedy doesn’t think he and the four others who told him to write an opinion think they have any business second-guessing prison officials.  And because the last man to speak on all of our behalf, to argue this point so that our wives, husbands, daughters and sons won’t be needlessly, pointlessly, irrationally, subject to this fundamental degradation of common human dignity, failed.

Should you find yourself in the clutches of a screw who tells you to drop your pants and squat, remember that it didn’t have to be that way.  It shouldn’t be that way.  And yet it is. Now you know who to send the thank you note to.  This is an utter disgrace, and hopefully, in a decade or two when the composition of the court changes and a competent advocate steps forward to address this issue again, we can undo the shame of this decision.